Lopez v. Random Correctional Officer - 5

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					Lopez v. Random Correctional Officer                                                                                                                                                           Doc. 5
                                                                                Case 3:05-cv-04334-MMC               Document 5          Filed 11/03/2005         Page 1 of 2



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                                                                            5                                    IN THE UNITED STATES DISTRICT COURT
                                                                            6                             FOR THE NORTHERN DISTRICT OF CALIFORNIA
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                                                                            8     VINCENT M. LOPEZ,                                          )      No. C 05-4334 MMC (PR)
                                                                                                                                             )
                                                                            9                       Plaintiff,                               )      ORDER OF DISMISSAL
                                                                                                                                             )
                                                                           10          v.                                                    )
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                                                                           11     CORRECTIONAL OFFICER RANDOW,                               )
  United States District Court




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                                                                           12                 Defendant.                                     )
                                 For the Northern District of California




                                                                                  ___________________________________                        )
                                                                           13     _
                                                                           14               The above-titled action consists of a letter in which plaintiff, an inmate at Pelican
                                                                           15     Bay State Prison (“PBSP”) alleges that a PBSP guard, Correctional Officer Randow
                                                                           16     (“Randow”), verbally harassed him. By separate order filed concurrently herewith, plaintiff
                                                                           17     has been granted leave to proceed in forma pauperis.
                                                                           18                                                     DISCUSSION
                                                                           19     A.        Standard of Review
                                                                           20               A federal court must conduct a preliminary screening in any case in which a prisoner
                                                                           21     seeks redress from a governmental entity or officer or employee of a governmental entity.
                                                                           22     28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and
                                                                           23     dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may
                                                                           24     be granted or seek monetary relief from a defendant who is immune from such relief. See
                                                                           25     id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See
                                                                           26     Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim
                                                                           27     under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the
                                                                           28     Constitution or laws of the United States was violated and (2) that the alleged violation was




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                                                                              Case 3:05-cv-04334-MMC              Document 5          Filed 11/03/2005         Page 2 of 2



                                                                          1     committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42,
                                                                          2     48 (1988).
                                                                          3     B.      Legal Claims
                                                                          4             Plaintiff claims that Randow verbally abused him. Specifically, plaintiff alleges that

                                                                          5     Randow told him that another PBSP guard lied when telling plaintiff that plaintiff’s mother
                                                                          6     had not died. Plaintiff claims that Randow’s comments caused him “spiritual pain.”
                                                                          7     Plaintiff cites no federal law, and this Court is aware of none, that prohibits Randow’s
                                                                          8     comments. Although 42 U.S.C. § 1983 protects inmates’ from violations of their rights
                                                                          9     under federal law, allegations of verbal harassment and abuse fail to state a claim cognizable
                                                                         10     under § 1983. See Freeman v. Arpaio , 125 F.3d 732, 738 (9th Cir. 1997); see, e.g., Keenan
                                                                         11     v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended 135 F.3d 1318 (9th Cir. 1998)
United States District Court




                                                                         12     (holding “disrespectful and assaultive comments” by prison guard insufficient to implicate
                               For the Northern District of California




                                                                         13     Eighth Amendment); Oltarzewski v. Ruggiero, 830 F.2d 136, 138 (9th Cir. 1987) (holding
                                                                         14     allegations of vulgar language directed at prisoner insufficient to state constitutional
                                                                         15     deprivation under § 1983). Accordingly, the verbal harassment alleged in this case does not
                                                                         16     state a cognizable claim for the violation of any federal law.
                                                                         17                                                   CONCLUSION
                                                                         18             In light of the foregoing, the above-entitled action is DISMISSED for failure to state
                                                                         19     a cognizable claim for relief.
                                                                         20             The Clerk shall close the file.
                                                                         21             IT IS SO ORDERED.
                                                                         22     DATED: November 3, 2005
                                                                         23                                               _____________________________
                                                                                                                          MAXINE M. CHESNEY
                                                                         24                                               United States District Judge
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